Ankara University
From the SelectedWorks of devrim aydin
March 5, 2013
THE MENTAL ELEMENT OF THE CRIME
OF GENOCIDE
devrim Aydin
Available at: http://works.bepress.com/devrim_aydin/1/
THE MENTAL ELEMENT OF THE CRIME OF GENOCIDE
DEVRĐM AYDIN∗
Abstract
Many scholars studying substantive criminal law examine the crime in an analytical
way to determine the elements of crime. Those scholars determine the elements of crime as
the material or objective (actus reus) and the mental or subjective element (mens rea). In
accordance with this, crime consists of an act that has reflected to the external world
(material element) and the psychological bond that links the act to the perpetrator (mental
element).
The elements of the crime of genocide are derived from the definition of Article 2 of
the 1948 United Nations Convention on the Prevention and Punishment of the Crime of
Genocide. According to this, the crime of genocide is committing any of the acts enumerated
in the Convention with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group as such. The mental element of genocide is mentioned neither in the
Convention nor during the Nuremberg trials. The discussion on the mental element of the
crime of genocide or “the genocidal intent” took place within the international criminal law for
the first time during the trials at international courts for Former Yugoslavia and Ruanda to
prove the genocidal intent.
This article discusses the definition of genocide, mental element of the crime in
substantive criminal law, mental element of crime of genocide and the jurisprudence of the
international tribunals related to the issue.
Keywords: Criminal law, international criminal law, crime of genocide, elements of
crime, intention, genocidal intent.
∗
Assistant Professor (LLB, LLM, PhD) of Criminal Law at Ankara University Faculty of Political Science.
1
1. Introduction
There was not a certain term in law and criminal law until the systematic Nazi
atrocities aiming the destruction of particularly the Jews (Holocaust) during the Second World
War. Although the terms -such as “massacre, mass killing, and destruction”- to qualify the
broad and systematic Nazi practices intending the destruction of Jews and other targeted
groups indicated the gravity of the incidents, these terms did not demonstrate the purpose of
the Nazis. A certain legal term for the atrocities of Nazis intending the destruction of the
targeted group was not coined yet. Nazis killed members of a certain group. Hereby, the
target of the Nazis was not individuals of the group one by one, but directly the targeted
group whole or in part. The destruction of the members of the group by the perpetrators to
destroy, in whole or in part, the targeted group is the characteristic of this crime, which is
qualified as “genocide” by law today. By this crime, victims were targeted because they had
the characteristics of a certain group. The perpetrators’ actual purpose was the destruction,
in whole or in part, of an ethnic, racial, national or religious group to which the targeted
people belong, by committing one or more acts enumerated in the “Convention on the
Prevention and Punishment of the Crime of Genocide” (hereinafter Genocide Convention).
It is not a coincidence that the definition of “genocide” was coined in 1944 by Raphael
Lemkin for these “crimes without a name”. Lemkin was a Polish who was obliged to settle in
America after he witnessed the policies of Nazis during the Second World War.1 Lemkin
proposed the term genocide to qualify the broad and systematic destruction policy of Nazis
against Jews during the Second World War. Lemkin tried to explain the crime of killing the
members of a group by the term genocide, which he combined from the Latin word genos
(community, people, race) and the word cide (killing). Lemkin thought that the crime of
genocide involves a wide range of actions, including not only deprivation of life but also the
prevention of life (abortions, sterilizations) and also devices considerably endangering life
1
See, Dan Stone, ‘Raphael Lemkin on the Holocaust’, 4 Journal of Genocide Research (2005) 539 - 550 for
Lemkin’s motive and study on definition of the Nazi atrocities. See also, William A. Schabas, Genocide in
International Law, (Cambridge University Press, 2000), p. 24 et.seg.
2
and health (systematic killing in internment camps, deliberate separation of families for
depopulation purposes and so forth), the acts are directed against groups, as such, and
individuals were selected for destruction only because they belong to these groups. Although
killing the members of a targeted group is one of the distinguishing characteristic of crime of
genocide, Lemkin referred 8 different acts of genocide of political, social, cultural, economic,
biological, physical, religious and moral character intending the extermination of the
existence of a group.2 Lemkin was criticized as being a romantic for referring to eight
different genocidal acts based on the systematic oppression policies of the Nazis against
Jews.3 Despite the definition and efforts of Lemkin, the scope of the crime of genocide has
been held narrower under international law. The conducts through which this crime might be
committed and the elements of the crime have been formulated under the Genocide
Convention.
The crime of genocide was not mentioned during the Nuremberg and Tokyo trials
where Nazi atrocity policies and massacres were brought before the international military
courts and the term ‘genocide’ did not take place in the trial records. Although following the
Nuremberg and Tokyo trials; wars, widespread armed conflicts and massacres took place in
different regions of the world, a “destruction” similar to “Holocaust” that can be qualified as
genocide did not occur. Perhaps due to its impact, there were not adequate academic
studies for a long time about the crime of genocide. However, genocide has been brought to
the agenda once again following the international crimes committed in Former Yugoslavia
and Rwanda and genocidal acts have attracted the attention of the international public
opinion. With the trials of International Criminal Tribunal for former Yugoslavia (hereinafter
ICTY) and International Criminal Tribunal for Ruanda (hereinafter ICTR) the existence of the
Genocide Convention was remembered. During ICTY and ICTR trials and following the
decisions of these tribunals; the crime of genocide, the scope and elements of this crime
2
Raphael Lemkin, ‘Genocide as a Crime Under International Law’, 41 American Journal of International Law
(1947) 145 - 151, at 145.
3
Alexander K. A. Greenawalt, ‘Rethinking Genocidial Intent: The Case for a Knowledge-Based Interpretation’, 99
Columbia Law Journal (1999) 2259 - 2294, at 2272.
3
have attracted the attention of criminal lawyers, and an increase in academic studies was
observed. The elements of crime of genocide and particularly genocidal intent took place in
the Rome Statute of International Criminal Court (ICC). Despite of numerous recent
academic discussions and publications, the definition and actus reus of the crime of
genocide in the ICC Rome Statute have been reiterated in exactly the same way from the
1948 Genocide Convention. The crime of at Genocide Convention, (art.2) is defined as:
“Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. ”4
It is a fact that the crimes listed in the Genocide Convention have been committed
even before the Genocide Convention and that many massacres have been committed in
history, which can be qualified as genocide. On different times and backgrounds of the
history of humanity, broad and systematic atrocities intending the destruction of ethnic,
religious, racial and national groups have been imposed. When these massacres were
committed, there was no international judicial mechanism forbidding, defining or punishing
these oppressions. There was also no certain judicial term qualifying the broad and
systematic atrocities intending the destruction of ethnical, religious, racial and national
4
The present definition of genocide was a political compromise reached in 1948 in order to accommodate the
concerns of the delegates of Great Britain and the former Soviet Union Republics who argued that the inclusion of
political and other groups in the definition of genocide would have discouraged the states from signing and finally
ratifying the Genocide Convention. Some scholars argues that the exclusion of targeted groups such as women,
social or economic classes, cultural and political groups undermines the adjudication of the crime of genocide and
hence catalyzing impunity in preventing and prosecuting genocide. Those argues that the crime of genocide
ought to be redefined in order to protect all victim groups See, Simeon Sungi, ‘Redefınıng Genocıde: The
Internatıonal Crımınal Court’s Faılure To Indıct On The Darfur Sıtuatıon’, Journal of Theoretical and Philosophical
Criminology (2011) 63 - 88, at 64 et. seg.
4
groups.5 Because of the lack of an national or international definition of genocide and
judgements such atrocities are still politically and historically arguable. If the Nazi
oppressions would have happened in an earlier era instead of the 20th century, all these
oppressions could have gone not beyond a tale of brutality. With the development of group
rights together with the human rights law, judicial efforts have been invoked to prevent these
kinds of oppressions. Even though acts similar to genocide have been witnessed in earlier
times, it has been denominated recently in history and its perpetrators have been judged
very recently. The punishment of genocide is parallel to the development of individual
criminal responsibility in international law. This is the reason why the judicial history of
genocidal acts starts with the Genocide Convention, although genocidal acts have a much
older history.6 However from this date individuals accused with genocide have been
prosecuted in national and international criminal courts. The reason for coining an act named
genocide is to prevent that the liability for systematic massacres intending the destruction of
certain groups shall not be left with impunity, as it happened in the past. The importance of
Lemkin, the Genocide Convention and the Nuremberg trials lies here.
2. The Crime of Genocide at Nuremberg and Tokyo Trials
The oppressive practices of Nazis against civilians were qualified as “atrocities,
massacres and cold-blooded mass executions” during the Moscow Conference in October
1943, which was organized by the three victorious heads of state of the Second World War.
However, the crime of genocide was not mentioned in the London Agreement of 8 August
1945, which was the legal basis of the Nuremberg trials. The acts within this scope were
qualified as “crimes against humanity” and the acts of the Nazis were qualified as “atrocity”.7
5
See, Robert Melson, Revolution and Genocide: On the Origins of the Armenian Genocide and the Holocaust,
(University of Chicago Press, 1996).
6
Omar Bartov, ‘Seeking the Roots of Modern Genocide: On the Macro and Micro History of Mass Murder’, in The
Specter of Genocide, Mass Murder in Historical Perspective, Robert Gellately and Ben Kiernan (eds.),
(Cambridge: Cambridge University Press, 2003) 75 - 96, 75 et. seg.
7
Hans H. Jescheck, ‘The General Principles of International Criminal Law as Mirrored in the ICC Statute’, 2
Journal of International Criminal Justice (2004) 38 - 55, at 50; Antonio Cassese, International Law, (Oxford:
5
Nazi leaders were accused of crimes against peace, war crimes
and crimes against
humanity-which were against the international customary rules established to that date and
the Hague Conventions of 1899 and 1907- at the Nuremberg trials which were also a turning
point for the international law.8 Acts constituting genocide were tried at the Nuremberg trials,
but they were not defined as an independent crime, as mentioned above.
“Crimes against humanity” (killings before the outbreak or during the war, destruction,
enslavement, exile and other inhuman acts against a civilian community) and “political, racial
or religious oppression” could only be considered as a crime during Nuremberg trials
provided that “crimes against peace” or “war crimes” were committed or that the above
mentioned crimes were committed in relation to these crimes.9 The most important reason of
this was the genocide policy against the Jews which was considered as “Holocaust”.
Holocaust does not consist only of the first category of acts enumerated within the definition
of “crimes against humanity.” It was a systematic and broad organization, whose aim was the
“Endlösung” (Final Solution) which means the cleansing of Europe from Jews. The
oppression that gypsies, homosexuals, mental and physical disabled and political opponents
have experienced along with the Jews was evaluated within the same scope. The oppression
experienced by Jews was taken into account during the accusations and trials, but the legal
nomination of the purpose of this oppression was not made. The killing and massacre of
Jews was qualified as “murder against humanity” in the indictment.10 The opinion that the
legality principle “Nullum crimen nulla poena sine praevia lege poenali” (No crime, no
punishment without a previous penal law) was violated during Nuremberg trials with the trial
of “genocidal acts” which did not formally take place in any legal document of that time is
Oxford University Press, 2001) at 252. London Agreement (8 August 1945) states that, “German atrocities in
Occupied Europe stated that those German Officers and men and members of the Nazi Party who have been
responsible for or have taken a consenting part in atrocities and crimes will be sent back to the countries in which
their abominable deeds were done in order that they may be judged and punished according to the laws of these
liberated countries and of the free Governments that will be created therein.” (Acsess, “www.trumanlibrary.org for”
Nuremberg Trials Chronology and documents.)
8
Giuliano Vassalli, ‘I Crimini di Guerra’, in La Giustizia Internazionale Penale, (Milano: CEDAM Publishing, 1995)
at 89 - 90.
9
William O’brian, ‘International Crimes’, in International Encyclopedia of the Social Sciences, D. L. Sills and R. K.
Merton (eds.), (Mc Millan Company Press, 1968), Vol. VII, at 517.
10
O’brian, supra note 9, at 518.
6
arguable. However, the Court did not qualify these acts of Nazis as “genocide” and thus did
not try them for this non-existing crime. The Court qualified the acts of Nazis against the
international legal norms of that time and considered them within the scope of “crime against
humanity.” Today, acts that can be considered as crime of genocide were considered as
crimes against humanity until the crime of genocide was established with the Genocide
Convention.
As mentioned above, Lemkin held the scope of the crime wide by mentioning political,
social, cultural, economic, biological, physical, religious and moral genocide. Despite the
intense efforts of Jews who were targeted in a serious and widespread way during the war,
during the Nuremberg trials the Court played an important role throughout the definition of
the crime of genocide by stating that not only Jews but also non-German and non-master
race nations and ethnic groups were also targeted by Nazis. Thus, not only Jews, but also
some other groups with the characteristics stated in the Convention were protected against
the crime of genocide.11 In terms of substantive criminal law, the legal entity or interest
desired to be protected by the crime was not only Jews and their existence. The
circumstance elements of the crime of genocide; in other words, the legal value protected by
this crime is the right of any religious, racial, national or ethnic group to exist with these
characteristics.12 The systematic crimes committed against those groups were not Jewicide,
but it was genocide. Therefore, the intent of the perpetrator could be the destruction of a
group other than the Jews. At the courts established within the Poland territory which had
been under the German occupation in 1944, the acts were held wide and decisions were
taken considering that the perpetrators’ intent was the destruction of Polish Jews.13 As seen,
11
David Nersessian, ‘The Contours of Genocidial Intent: Troubling Jurisprudence from the International Criminal
Tribunals’ 37 Texas International Law Journal (2002) 231 - 298, at 249; see also, Greenawalt, supra note 3, at
2271.
12
Circumstance elements are such things as a “humanbeing” in homicide, “property of another” in theft, “a civilian
population” in crimes against humanity, “a protected person” in war crimes and “a national, ethnical, racial or
religious group as such” in genocide. See, Roger Clark, ‘Elements of Crimes in Early Decisions of Pre -Trial
Chambers of The International Criminal Court’, 6 New Zealand Yearbook of International Law (2009) 208 - 238, at
214.
13
Nersessian, supra note, 11, at 253; Schabas, supra note, 1, at 41.
7
these trials and decisions are “reflexive” and far away from the scope of the Genocide
Convention that will be prepared later.
3. An International Legal Definiton Derived From The History: The 1948
Convention on Genocide
Lemkin’s studies have a particular place in the definition of the crime of genocide.
Lemkin realized that the 1907 Hague Convention and international law were inadequate for
the protection of national minorities and that the acts of the Nazis targeting Jews have not
been defined in any legal document to that time; thus, he pursued his studies on this basis.
As mentioned above, Lemkin had mentioned 8 different kinds of crime of genocide.
International Conference for Unification of Criminal Law held in Madrid in 1933 had an
important place for the formation of the expression which takes place in the Convention.
Lemkin tended to define “a new crime” covering all the acts of the Nazis against Jews, but it
was not accepted during this conference. Lemkin’s definition also included existing rules as
not harming civilians during the attack, the execution of the war and during the war. The aim
of this definition was to express all the acts of the Nazis within a single type of crime.14 On
the other hand, the impact of Lemkin’s intense lobbying activities was felt relating the
Resolution 96 (I) of 11 December 1946 of the General Assembly of the United Nations and
thus it has been stated that:
“Genocide is a denial of the right of existence of entire human groups, as homicide is
the denial of the right to live individual human beings; such denial of the right of
existence shocks the conscience of mankind, results in great losses to humanity in
14
F. Gabriel, ‘Genocidio’, in Novissimo Digesto Italiano,Vol. VII, (Torino: UTET Editrice) 780; Nersessian, supra
note 11, at 247, 248.
8
the form of cultural and other contributions represented by these human groups, and
is contrary to moral law and to the spirit and aims of the United Nations.”15
The Genocide Convention was established within the framework of the principles set
forth at the Nuremberg trials and thus the crime of genocide was affected by the progress of
the trials. According to the Convention, crime of genocide can be committed in time of war
but also in time of peace. Genocidal acts might be committed within the territory of the state
where the group lives or through the occupation of another state’s territory and by targeting
the groups settled there. As a matter of fact, not only the Jews within the German territory,
but also the Jews of the occupied countries were exposed to extermination policies.16 Thus,
the crime of genocide might target the members of a group living in a certain country and as
well as some parts of the group in different countries. Article 1 of the Genocide Convention
states that:
“The Contracting Parties confirm that genocide, whether committed in time of peace
or in time of war, is a crime under international law which they undertake to prevent
and to punish.”
The crime of genocide shall not be considered as a political crime; therefore, the
perpetrators of the crime of genocide might be extradited to the demanding country to carry
out trials regarding the crime of genocide. Article 7of the Convention states that
“Genocide and the other acts enumerated in article III shall not be considered as
political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in
accordance with their laws and treaties in force.”
Resolution 96 (I) defined the crime of genocide, proposed elements of the crime and
listed the groups protected. But it is mentioned neither in the Genocide Convention nor
15
16
UN Doc. A/BUR.50.
N. Ronzitti, ‘Genocidio’, in Enciclopedia del Diritto, Vol. XVIII (Milano: Giuffre Editrice, 1969) at 573.
9
during the preparatory debates that the crime can be committed with intent or special intent.17
Since it is stated in Article 2 of the Convention that “genocide means any of the following acts
committed with intent to destroy”, the analytical examination of the crime demonstrates that
this crime can only be committed intentionally. On the other hand, a crime named as
“genocide” has not been mentioned during the Nuremberg trials. As it will be analyzed
hereinafter, a discussion on the mental element of the crime of genocide took place within
the international criminal law for the first time during the ICTY and ICTR trials because the
proof of the crime of genocide is strictly based on the proof of the genocidial intent.
4. The Mental Element of Crime in Substantive Criminal Law
Criminal lawyers examine the crime in an analytical way to determine the elements of
the crime, to understand its scope and in how this crime might be committed. The purpose of
the analytic method is to clearly determine the limits of the punishable act. Today authors
examining the crime in an analytical way predominantly tend to a dual division. According to
this dual division, the crime consists of two elements, the material or objective element (actus
reus) and the mental or subjective element (mens rea).18 In accordance with this, crime
consists of an act that has reflected to the external world (material element/actus reus) and
the psychological bond that links the act to the perpetrator (mens rea /mental element).19
Mens rea is a requisite for criminality in modern criminal law and it is also one of the
basic concepts of substantive criminal law. According to this, the existence of an act inflicted
by the perpetrator is not alone adequate to accept a conduct as a crime and to punish. It is
required that this conduct is the result of the perpetrator’s guilty mind (conscious will).
17
For a summary of the history of the resolution, see UN DOC. E/621.
According to another approach adopted by some German and Italian criminal lawyers, along with the mens rea
and actus reus (material and mental element of the crime), the acts done by the author has to be contrary to the
law. For them “unlawfulness” is another element of the crime. However, this division is a technical discussion
carried out among criminal lawyers. Considering the regulation of the ICC Statute, it is apparent that the Statute
accepts that the crime is constituted of the material and mental element by adopting dual division.
19
See, Michael Jefferson, ‘Criminal Law’, (Essex: Longman, 2006) at 41 et.seg.
18
10
Therefore, for the punishment of the perpetrator he/she should have committed the crime
“knowingly and willfully”.20 It is not adequate for an act to compose a crime that it has
reflected to the external world as defined by the law (existence of an act which is prohibited
by the law) and that there is a causal relation between the conduct of the perpetrator and its
result. Conduct has to be the result of the perpetrator’s guilty mind.21 Mens rea is also called
‘culpability’ means that the perpetrator’s act is a blameworthy behavior (guilty mind) which is
forbidden by law.22 Culpability appears as “intention” (dolus) or negligence (culpa). Intention
may occur as ‘direct intention’ (dolus directus) or ‘recklessness’ (dolus eventualis).23
Genocidal intent is a form of special intent (dolus specialis) which can only encompass dolus
directus. In this sense the genocidal intent means direct and special intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such. ICTY stated this point
in Krstic Case and stated “for the purpose of this case, the Chamber will therefore adhere to
the characterisation of genocide which encompass only acts committed with the genocide
which encompass only acts committed with the goal of destroying all or part of a group”.24
Negligence is mainly the avoidance of the result. Because of the fact that the crime of
genocide cannot be committed through negligence, this issue will not be taken into
consideration.
“Dolo or dolus” describes the “actus non facit reum nisi mens sit rea” principle.25 This
principle means that the act itself does not constitute a crime unless done with a guilty mind.
As a general rule of law, a guilty mind is an essential element of crime and this rule ought to
be borne in mind in construing all penal statutes. Literally, intent is the expression of a will
directed to a certain goal. For the existence of intent, it is required that the perpetrator
20
Jefferson, supra note 19, at 81.
See, John Smith and Brian Hogan, ‘Criminal Law’, (London, Butterworths, 1999) at 53.
22
Smith and Hogan, supra note 21, at 54.
23
Clark, supra note 12, at 210; also see, Nicola Pisani, ‘The Mental Element in International Crime” 121-142, in
‘Essays on the Rome Statute of the International Criminal Court’ (Aquila: il Serente Edittrice, 2004) at 126 et.seg.
24
Prosecutor v Krstic, Case No IT-98-33-T, Judgement, at para 595 (Aug. 2, 2001).
25
William A. Schabas, ‘Introduction to the International Criminal Court’ (New York: Cambridge University Press,
2001) at 85. Some scholars argue that recklessness and dolus eventualis is not the same thing. See, George P.
Fletcher and Jens David Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’,3, Journal
of International Criminal Justice (2005), 539 -561, at 554 et.seg.
21
11
commits the crime with ‘knowingly and willfully’.26 The knowing element required for the
existence of the intent is different from the awareness that the act constitutes a crime; the
knowing element expresses the accurate knowledge regarding the committed act.
5. Mental Element of the Crime of Genocide or the Genocidal Intent
Intention (dolus) consists of knowing and willing the act that constitutes a crime.
General intent comes into question when the law requires that the material act (the act
prohibited by law) has been committed consciously and willingly and the purpose, which
motivates the perpetrator, is not important for the existence of the crime.27 The civil law
discussion on dolus usually takes a combination of cognitive and volitional elements,
conscience and will. Crimes like homicide, assault, robbery and rape are crimes that can be
committed with general intent. In these types of crimes the purpose of the perpetrator
through committing this crime is not taken into consideration throughout the punishment of
the perpetrator. Unless it is enunciated in the law, the motive of the perpetrator to commit the
crime; in other words, perpetrator’s purpose by committing the crime is not taken into
consideration during the punishment of the perpetrator.28 However, sometimes law may
consider the committing of an act with general intent inadequate for the existence of a crime
and also requires a purpose for perpetrator’s act along with the fact that the perpetrator
commits the act by knowing and willing it.29 In various legal systems it is understood and
interpreted that “purpose” means “general intent”, and “intent” means “special intent” (specific
intent or dolus specialis).30 “Motive” is the reason that directs the perpetrator to commit the
crime; “purpose” is the goal of the perpetrator through committing the crime. The term
purpose stresses the volitional element of intending a consequence in the sense of desiring
26
SauroTassi, ‘il Dolo’, (Milano: CEDAM Editrice, 1992) at 2. See also, Jefferson, supra note 9, at 84.
Nersessian, supra note 11, at 263.
28
Whitley R. P. Kaufman, ‘Motive, Intention, and Morality in the Criminal Law’, 28 Criminal Justice Review (2003)
317 - 335, at 317.
29
See, Nersessian, supra note 11, at 264.
30
See, Greenawalt, supra note 3, at 2268; also see, Schabas, supra note, 1, at 217-218.
27
12
the latter.31 On the other hand, “intent” means that the perpetrator commits the crime
knowingly and willfully.32 Special intent occurs when it is required for the existence of the
crime or the aggravation of the punishment that the perpetrator acts with a certain purpose.33
In this case, the law requires that the perpetrator acts with a special purpose along with the
conscious and willing existence of the material act.34 Specific intent requires proof that the
actor’s conscious object, or purpose, is to cause the social harm set out in the definition of
the offence.35
“General intent” comes into question when the perpetrator knows that his conduct is
socially harmful and dangerous, and when he desires this harmful and dangerous result. It is
adequate for most of the crimes that the perpetrator acts with general intent. On the other
hand, special intent comes into question when it is required that the perpetrator acts to
achieve a certain purpose which is forbidden by law, along with the fact that the crime is
committed by knowingly and willfully.36 Therefore, special intent only comes into question
when the perpetrator commits a typical act to achieve a forbidden purpose by law, and not
when he has a certain purpose through committing the crime.37 Even if the difference
between intent and motive under criminal law and the discussions concerning this difference
are put aside, it is a fact that the purpose of the perpetrator to commit a crime is not always,
31
Hans Vest, ‘A Structure - Based Concept of Genocidal Intent’, 5 Journal of International Criminal Justice (2007)
781 - 797, at 782.
32
Jerome Hall, ‘General Principles of Criminal Law’ (2nd edn., New York: Oxford University Press, 1960) at 83.
The American Model Penal Code (Paragraph 2.02 (2) (a) offers a similar definition: “A person acts purposely with
respect to a material element of an offence when: (i) if the element involves the nature of his conductor a result
thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the
element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes
or hopes that they exist.” See, Vest, supra note 22, at 783. Different national legal systems use a variety of terms
to describe the mental states that accompany the commission of crimes. For a detailed comparative study on
mens rea problem in international criminal law. See, Jennifer S. Martinez, Understanding Mens Rea in Command
Responsibility, 5 Journal of International Criminal Justice (2007) 638 - 664, at 643 et seq.
33
Prosecutor v. Akayesu, (Case No. ICTR-96-4-T) Judgement, 2 September 1998, para.477; also see, Hall,
supra note 32, at 142 et seq.
34
See, Greenawalt, supra note 3, at 2266.
35
See, Vest, supra note 31, at 782; also see, Schabas, supra note, 1, at 218 et seq.
36
Rodolfo Venditti, ‘Dolo’, in Novissimo Digesto Italiano, Vol. VI (Torino: UTET Editrice, 1960) at 160.
37
Michele Gelardi, ‘il Dolo Specifico’, (Padova: CEDAM Editrice, 1996) at 60 - 61.
13
but in certain crimes important.38 The reason that the motive of the perpetrator is not
considered important for criminal law is that the motive has no concern with the culpability.
In situations where the intent of the perpetrator is to achieve a certain result, it is
explicitly stated in the law and the clause includes that the purpose of the perpetrator has to
be punished.39 In this case, not a certain conduct, but the forbidden purpose of the
perpetrator which he wants to achieve through this conduct is punished.40 Thus, the fact that
a crime can be committed with special intent is not related to the nature of that crime or the
act of the perpetrator, but to the expression of the norm. For instance, in the crime of
burglary; not taking a property of someone else in forbidden, but taking a property of
someone else to ‘make it one’s own property’ is forbidden. Therefore, this crime is a crime
which can be committed with special intent within the scope of various legal systems. In the
event that a moveable property (thing) is taken for a purpose other than owning it (to making
it one’s own property) burglary cannot be mentioned. With the content of the norm it can be
decided whether or not special intent is required for the existence of the crime.41 As analyzed
hereinafter, since the intention of the perpetrator of the crime of genocide is to destroy the
protected group whole or in part, this constitutes a crime which can only be committed with
special intent.42 The purpose to destroy the group (genocidal intent) characterizes the mental
element of this crime. The reason that special intent is required for the crime of genocide is
the strong psychological bond between the act of the perpetrator and perpetrator’s purpose,
in other words the purpose through committing the acts characterizes the crime. Special
intent is required as a constituent element of certain offences and demands that the
perpetrator have the clear intent to cause the offence charged. According to this meaning,
special intent is the key element of an intentional offence, which offence is characterized by a
38
See, Kaufman, supra note 23, at 318.
See, Alberto Cadoppi and Paolo Veneziani, ‘Elementi di Diritto Penale’, (Padova: CEDAM Editrice, 2002) at
279 - 280; also see, Gelardi, supra note 37, at 120.
40
See, Catherina Elliott, ‘The French Law of Intent and Its Influence on the Development of International Criminal
Law’, 11 Criminal Law Forum (2000) at 38.
41
Cadoppi and Veneziani, supra note 39, at 280.
42
Kai Ambos, What Does ‘Intent to Destroy’ in Genocide Mean?’, International Review of the Red Cross 876,
(2009), 833 – 858, at 837 et. seq.
39
14
psychological relationship between the physical result and the mental state of the
perpetrator.43 If the purpose of the perpetrator by committing the acts enumerated in the
Genocide Convention against a victim or/and the victims is not the destruction of the group in
whole or in part, the crime of genocide cannot be mentioned. In this case probably the
perpetrator shall be prosecuted for crimes against humanity.
The elements of the crime of genocide are derived from the definition of article 2 of
the Genocide Convention. According to this, the crime of genocide is committing any of the
acts enumerated in the Convention with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group. The material element of this crime, the acts that constitute
the crime are enumerated in article 2. As it is mentioned in the interpretation of the
International Law Commission, these are not the type of acts that would normally occur by
accident or even as a result of mere negligence.44 None of these five acts listed in article 2 of
the Convention that constitute the material element of the crime of genocide can be
committed by accident or coincidence or negligence. On the other hand, a general intent to
commit one of the enumerated acts is not sufficient for the crime of genocide. These acts can
only be committed with the purpose of destroying the group which demonstrates the fact that
this crime can only be committed with (special) intention or ‘dolus specialis’ in Latin. Since
the enumerated acts are intending the destruction of the group, these acts can only be
committed by knowing and willing it. Hereby, knowing (the cognitive element) is to know that
as a result of the committed acts the whole or a part of the group might be destroyed. And
willing (volitional element) is the purpose of destroying the group in whole or in part and
acting to achieve this goal. Special intent comes into question, because the purpose of the
perpetrator characterizes the crime and the perpetrator’s purpose is being punished.
Genocide is therefore formed as an intentional result crime which includes the extended
mental element of destroying a protected group such as. The necessary dolus specialis for
43
Akayesu supra note 33, Par. 518.
Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996, Doc.
N. A/51/10, p. 44.
44
15
the crime of genocide is committing the acts listed in clause 2 of the Convention of Genocide
to intent to destroy in whole or in part a national, ethnical, racial or religious group as such.45
6. The Interpretation of Genocidal Intent by International Criminal Tribunals
ICTY was an ad hoc court which was established to try various crimes committed in
the territory of Former Yugoslavia but the crime of genocide was not considered in the
Statute. During the Sikirica, Krstic and Jelisic trials of this court, the crime of genocide came
up and the Court commented and rendered decisions regarding the crime of genocide.
Although the influence of the English law was apparent regarding the definition and types of
the intent during the Celebici case, later the Court commenced to interpret the mens rea and
intent issue according to international criminal law and international crimes; thus, the Court
developed its own original interpretation through the Anglo-Saxon (case law) and continental
Europe (Romano-Germanic) system, which is also called the “third way.46 ICTY Appeals
Chamber on Jelisic judgement stated that for the existence of the crime of genocide, it is
required to approach material element (actus reus) and mental element (mens rea) together.
According to this the Convention stated that it is required that a group whose characteristics
are determined by the Convention is targeted and the destruction of this targeted group is
aimed through committing one or more acts enumerated in the Convention. The ICTY
Appeals Chamber stated that “Where this test is not met, the Chamber must decide in
relation to which offence it will enter a conviction. This should be done on the basis of the
principle that the conviction under the more specific provision should be upheld. Thus, if a set
of facts is regulated by two provisions, one of which contains an additional materially distinct
element, then a conviction should be entered only under that provision.”47 ICTR Trial
Chamber emphasized that for the existence of the genocide the qualifications of the
particular group are important and the members of the group were not targeted as an
45
Schabas, supra note, 1, at 211.
See, Elliott, supra note 40, at 43.
47
Judgement, Jelisic (IT-95-10-A, Par. 79), Appeals Chamber, 5 July 2001.
46
16
individual, because they were members of the group48 Regarding the Jelisic decision, ICTR
referred to the opinion of Lemkin and the Convention of 1948 concerning the material and
mental elements of the crime and carried out a literal interpretation and subjected the crime
to a traditional evaluation49 and genocide can only be committed with intent by referring to
the Akayesu decision of the ICTR.50
ICTR sentenced former prime minister of Rwanda, Jean Kambanda on 1 May 1998
for planning, participating and provocating genocide and committing crime against humanity;
and sentenced Jean-Paul Akayesu on 2 September 1998 for crime of genocide. The judicial
determination of ICTR regarding the crime of genocide was later shaped by the Akayesu,
Kayishema, Ruzindana, Serushago, Rutaganda, Musema, Ruggia and Bagilishema
decisions. During the various judgements of the ICTR, it was stated that the crime of
genocide can be committed with special intent and it was specified by using the terms
“special intent51 , specific intent52and specific genocidal intent.53 Despite these terms, the
Court did not render a coherent decision about the existence of special intent regarding
crime of genocide. However, it is adequate for the criminal law technique that the crime is
committed with intention; for the same crime cannot be committed with both, intent and
special intent. If a crime is committed with special intent, it may require a different or heavier
punishment. However, in the event of the punishment of the perpetrator’s purpose by putting
forward the purpose of the perpetrator, in other words in case of the purpose qualifies the act
as a crime, special intent comes into question. ICTR emphasized this point by its decisions.
ICTR emphasized with the Akayesu judgement the difference between genocide and the
crime against humanity through the fact that the crime of genocide is committed with special
intent as crime against humanity means that the group is oppressed, whereas the crime of
48
Judgement, Jelisic (IT-95-10-T, Par. 79), Trial Chamber, 14 December 1999.
Jelisic, supra note, 47, Par. 82.
50
Jelisic, supra note, 47, Par. 86 and 99. In Jelisic judgement the expression “dolus specialis” has the same
meaning as “specific intent” and indicates the “mental element” (mens rea) of the crime of genocide.
51
Akayesu, supra note, 33, Par. 498.
52
Judgement, Kayishema&Ruzindana (ICTR-95-1-T, Par. 91), Trial Chamber, 21 May 1999.
53
Judgement, Bagilishema. (ICTR-95-1A-A, Par. 55), Trial Chamber, 3 July 2002.
49
17
genocide is the destruction of the group. ICTR stated that “Having regard to its Statute, the
Chamber believes that the offences under the Statute - genocide, crimes against humanity,
and violations of article 3 common to the Geneva Conventions and of Additional Protocol II have different elements and, moreover, are intended to protect different interests. The crime
of genocide exists to protect certain groups from extermination or attempted extermination.
The concept of crimes against humanity exists to protect civilian populations from
persecution. The idea of violations of article 3 common to the Geneva Conventions and of
Additional Protocol II is to protect non-combatants from war crimes in civil war. These crimes
have different purposes and are, therefore, never co-extensive.”54
As is seen through the ICTY and ICTR decisions the courts did not invent novel legal
norms. The courts interpreted existing legal norms and contributed to legal accumulation
regarding international crimes and genocide. These two ad hoc courts have shouldered an
important function regarding the determination of the normative meanings of the expressions
taking place in the Genocide Convention and regarding the fact that the Genocide
Convention became a part of the international customary law.
7. Genocidal Intent at the Rome Statute of International Criminal Court
The regulations of the Statute of International Criminal Court are established with
Nuremberg, Tokyo, ICTR and ICTY experiences and the legal accumulation of international
criminal law. Since the crime of genocide was not coined yet during Nuremberg trials,
genocidal acts were evaluated within the scope of crime against humanity.55 During the ICTY
and ICTR trials, discussions on genocide were based on the Genocide Convention. The
Rome Statute of ICC quoted the crime of genocide from the draft text of the 1996 ICC
Preparatory Committee as of the Genocide Convention of 1948. The reason is that as
54
55
Akayesu, supra note, 33, Par. 469.
See, Jescheck, supra note 7, at 50.
18
emphasized by the recommendatory opinion of the UN International Law Commission in
1951, the crime of genocide as defined in 1948 constitutes contradiction to the international
customary law and it was not accepted that a definition other than this was made.56
ICC Rome Statute defines the crime of genocide in exactly the same way as it is in
the Genocide Convention of 1948. According to the Rome Statute, for the existence of
genocide it is not adequate alone that one of the acts enumerated in Article 6 has been
committed. Article 6 of the ICC Statute is as follows:
Article 6,Genocide:
For the purpose of this Statute, "genocide" means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such:
(a)Killing members of the group;
(b)Causing serious bodily or mental harm to members of the group;
(c)Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d)Imposing measures intended to prevent births within the group;
(e)Forcibly transferring children of the group to another group.
It is also required that this act should be committed with the purpose to destroy the group in
whole or in part. Article 30 of the ICC Statute includes the regulation regarding the mental
element of the crime. Article 30 of the ICC Statute is as follows:
56
During the ICC Preparatory Committee the proposal submitted by Algeria, Bahrain, Comoros, Djibouti, Egypt,
Jordan, Iraq, Kuwait, Lebanon, Libyan Arab Jamahiriya, Mauritania, Morocco, Oman, Qatar, Saudi Arabia,
Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen that “political and social groups” shall
also be added to the groups protected by the Genocide Convention and “transferring children to another group”
shall be changed into “transferring people to another group” was rejected due to the fact that the Convention is so
clear that there is no space for any interpretation regarding this issue and any change in the content of the
Convention cannot be accepted. See, UN Doc. PCNICC/1999/WGEC/DP.4, p.3.
19
Article 30, Mental element:
1.Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements
are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. "Know" and
"knowingly" shall be construed accordingly.
The expression of “intent to destroy” in Article 6 and the definition of “intent” in Article
30 complement each other. General intent (dolus generalis) is defined in Article 30 and the
definition of “genocide” and the “intent” to destroy the group takes place in Article 6. The
regulation regarding mental element takes place in Article 30 of the Rome Statute. According
to this, “unless otherwise provided” to hold the person responsible of a crime within the
jurisdiction of the Court, it is required that the material elements should be realized with intent
and knowledge. The second paragraph explains when the person will considered to have
acted with intention. The third paragraph explains what knowledge means. Although, in
respect of the way it is committed, the crime of genocide is a broad and systematic crime and
even if in most of the cases crime comes into question with a prepared plan; parallel to the
expression in the Convention, the plan is not required for the existence of the crime, but the
existence of the plan is considered to be an evidence of the crime.
Article 6 and 30 of Rome Statute shall be considered together with a genocide case
before the ICC. The expression “unless otherwise provided” in Article 30 and the expression
“intent to destroy” in Article 6 which was reiterated exactly from the Genocide Convention are
20
coherent. Although the crimes under the jurisdiction of ICC can be committed with intent, it is
accepted that the crime of genocide can be committed with “special intent.”57 According to
the Statute, although genocide is an intentional crime, the purpose which is desired to be
achieved through the committed acts is important for the punishment of the crime. It is not
necessary that this purpose is achieved; it is adequate that one of the enumerated acts is
committed to achieve the purpose.
In terms of the criminal law technique and the quality of the intention, it is not right
that only the knowledge element out of the “knowledge and willing” elements has been stated
as the element of intention in the ICC Statute. Regarding that the mental element consists of
“intent and knowledge”, the insistence of the French delegation is important that these two
terms shall be linked with “and” to correspond the notions “intent et volonté” of French
criminal law.58 However, this proposal of the French delegation and this expression of the
Statute are not important under general theory of substantive criminal law. The elements of
intention are “knowing and willing” in all criminal law systems. The fact that another word is
used instead of intention does not change the situation. For instance, Italian criminal law
system prefers the Latin “dolo” notion instead of “intendo”, the elements of the dolo are also
knowing (coscienza) and willing (volonta). Wissen und wollen is used in German criminal law
to indicate the elements of intention.
57
Roberta Arnold, ‘The “Mens Rea” of Genocide Under the Statute of the ICC’,14 Criminal Law Forum (2003) 127
- 151, at 132; see also, Schabas, supra note 25, p. 217 et seq.
58
The difference between the English and French criminal laws is also obvious in the translation of Article 2 of the
Convention. Although article 2 of the Convention is translated into English as “killing members of the group”, the
French translation is “meurtre de membres du groupe”. While “killing” means only “to kill”, “murder” means
“deliberately killing” and there is an emphasize on the intended form of the killing act. See, Albin Eser, ‘Mental
Elements – Mistake of Fact and Mistake of Law’, in, The Rome Statute of The ICC: A Commentary, A. Cassese P. Gaeta - Jones, (eds.), (Oxford: Oxford University Press,2002) Vol.1, p. 889-948, at 906 et. seq.
21
8. Evidentiary Aspects of Genocidal Intent
Genocidal intent and its proof seem to constitute the most serious problem of “crime
of crimes.” Genocidal intent is the destruction of a protected group in whole or in part for its
characteristics enumerated in the Convention. The distinctive feature of crime of genocide
from other crimes is that this crime does not target individuals, but a human group.59 ICTR
stated at its Kambanda judgement that, “Since the purpose of the genocide crime is to
destroy in whole or in part a certain racial, ethnic, national or religious group, special intent
(dolus specialis) exists here and this crime is “the crime of the crimes”.60 Special intent is not
the mental element of the crime, but a type of the intent and qualifies the crime of genocide.61
Committing the acts enumerated in the Genocide Convention deliberately may cause other
crimes, but to execute the crime of genocide it is required that the acts listed in the article 2
of the Convention are committed with the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such. The offender must have the knowledge of the
consequences that his/her acts in the ordinary course of events would destroy, in whole or in
part the group.62 So the mens rea of the crime of genocide is the special purpose of the
perpetrator. His special purpose for committing the listed acts in the Convention is to destroy
the group in whole or in part. The purpose of the perpetrator or the “special intent” (dolus
specialis) is “genocidal intent” or “intent to destroy whole or in part.”63
59
Cecile Aptel, ‘The Intent to Commit Genocide in The Case Law of the ICTR’, 13 Criminal Law Forum, (2002)
273 - 291, at 277.
60
ICTR in Prosecutor v. Kambanda case (Par. 16) stated as follows: “Regarding the crime of genocide, in
particular, the preamble to the Genocide Convention recognizes that at all periods of history, genocide has
inflicted great losses on humanity and reiterates the need for international cooperation to liberate humanity from
this scourge. The crime of genocide is unique because of its element of dolus specialis (special intent) which
requires that the crime be committed with the intent to destroy in whole or in part, a national, ethnic, racial or
religious group as such, as stipulated in Article 2 of the Statute; hence the Chamber is of the opinion that
genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence.”
Prosecutor v. Kambanda, (ICTR 97-23-S), judgement and sentence, 4 December 1998)
61
See, Arnold, supra note 57, at 134.
62
See, Schabas, supra note, 1, at 211-212.
63
See, William A. Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina’, 25 Fordham International
Law Journal (2001 - 2002), at 49.
22
On the other hand, some consider the “special intent” of genocide not as a type of
intent, but as the mental element of the crime.64 A similar interpretation made in a decision of
the ICTR and it was stated that “special intent” which demonstrates the motive of the
perpetrator to destroy the group as the mental element of the crime shall definitely exist for
genocide.65 The general intent and special intent division is a theoretical division and the
purpose is to understand the crime and to determine the intent of the perpetrator. That it is
determined during the trial that the perpetrator acted with genocidal intent; in other words,
the existence of genocidal intent is the existence of special intent.66 The important point in
terms of criminal law and law on criminal procedures is the determination of whether the
perpetrator has acted “intentionally” or not. If it has been determined that the perpetrator
committed a crime intentionally, which can be committed with special intent, the problem is
solved. The reason for this is that “special intent” is not a type of the mental element of the
crime, but a type of the “intent.”
Nevertheless, it is certain that genocide can only be committed intentionally.
However, the distinction of this crime from any other mass killing or crime against humanity
or ethnic cleansing is that the purpose of the perpetrator is “to destroy the group” and since it
is required to consider the purpose of the perpetrator to commit the crime, hereby a crime
that can technically be committed with special intent exists. The basic characteristic of this
crime is aiming the destruction of a group whose characteristics are enumerated in the
Convention. Therefore, the victims of this crime are not targeted because of who they are,
but just because of being members of the targeted group and are targeted to destroy the
group.67 The victims of genocide are exposed to the acts enumerated in the Convention for
being a member of the targeted group and to enable the exact crime to be committed.68
64
See, Arnold, supra note 57, at 135
Judgement, Rutanga (ICTR-96-3, Par. 61), Trial Chamber, 6 December 1999.
66
See, Nersessian, supra note 11, at 264.
67
Akayesu, supra note, 33, Par. 521.
68
Akayesu, supra note, 33, Par. 522.
65
23
ICTY stated that the basic characteristic of the crime of genocide is the purpose of
destroying the group and that this purpose is the basis of the crime of genocide; and thus,
the crime is committed with special intent.69 The intent of the genocide shall be taken into
consideration in accordance with the general principles of criminal law and the historical
process of the preparation of the Convention. Therefore, the mental element of this crime
shall be analyzed through both historical and teleological interpretation methods.
Since the intent is a mental factor, the determination of the perpetrator’s intention is
highly difficult, as for all crimes. Genocidal intent may be determined through the acts of the
perpetrator.70 One of the criteria applied for the determination of the intent of the crime of
genocide is the quantitative characteristics of the destroyed part of the group. ICTR stated in
its Kayishema judgement that “when the number of the killed Tutsi people is considered, it is
obvious that the purpose was the destruction of the group”71 however, the Court did not state
a certain number and thus, disregarded the quantification of the persons killed.
Another method for the determination of the intent is the “repetition of the destructive
and discriminating acts”.72 Moreover, ICTR stated that the existence of a plan for genocide is
an important evidentiary instrument and explicit expressions of the perpetrator about
genocide and -although cultural genocide does not take place in the Convention- the
destruction of the cultural existence of the protected group73 were also considered as
indicators of genocidal intent by ad hoc courts. For example, ICTY considered the
destruction of the institutions and libraries belonging to the Muslims as an evidence of intent
of destroying the group in the Karadzic and Mladic judgements.74 ICTY stated in the Jelisic
69
Akayesu, supra note, 33, Par. 521; Judgement, Musema, (ICTR-96-13-A, Par. 167), Trial Chamber, 27 January
2000.
70
Akayesu, supra note, 33, Par. 523; Musema, supra note, 55, Par. 167; see, Schabas, supra note, 1, at 210211.
71
Kayishema&Ruzindana, supra note, 52, Par. 533.
72
See, Nersessian, supra note, 11 at 266; Judgement, Karadzic&Mladic (ICTY-95-5-R61 and IT-95-18-R 61 Par.
294), 11 July 1996.
73
Kayishema&Ruzindana, supra note, 52, Par. 93 and 94. See also, judgement, Krstic (ICTY-98-33, Par. 88), 2
August 2001 and Karadzic&Mladic, supra note, 72, Par. 94 and 95 for similiar decisions.
74
Karadzic&Mladic, supra note, 72, Par. 94.
24
case that perpetrators always targeted members of the same group (in other words, that the
perpetrator commits the acts enumerated in the Convention always against the members
belonging to a certain group) which indicates the existence of genocidal intent.75 Moreover,
the International Court of Justice stated in the “Yugoslavia et. al.” and “Nuclear Weapons”
case that the excessive power used might be related to genocide and the use of excessive
power will prove genocidal intent.76
The first jurisprudence of the ICC on Al-Bashir Case in the Situation of Darfur is the
most recent legal documents about the interpreting the crime of genocide and the proof of
genocidal intent. In its 4 March 2009, decision, Pre-Trial Chamber I rejected the Prosecutor’s
application in respect of genocide stating that it would issue an arrest warrant for genocide
only if there were reasonable grounds to believe in the existence of genocidal intent. On 3
February 2010, the Appeals Chamber (Par. 30) stated that the existence of genocidal intent
must eliminate any reasonable doubt.77 ICC issued an arrest warrant on July 12, 2010, for
President Omar al-Bashir of Sudan for genocide committed in Darfur considering that there
were reasonable grounds to believe that Omar Al Bashir was criminally responsible as an
indirect perpetrator, or as an indirect co-perpetrator for genocide. Atrocities committed in
Sudan by the Sudanese armed forces and Sudanese government-backed militia “Janjaweed”
against civilian populations and ethnic groups (the Fur, Masalit and Zaghawa) were listed in
the decision and Al Bashir was believed to be criminally responsible as an indirect
perpetrator or indirect co-perpetrator because of these atrocities.78 Al Bashir was accused
with killing members of the group, causing serious bodily or mental harm to members of the
group whole or in part, committed against a racial, religious, national or ethnic group with the
75
Jelisic, supra note, 47, Par. 73.
ICJ’s Judgement, Legality of the Use of Force (Yugoslavia v. U.K.,U.S.A.andothers. ICJ, 2 June 1999)
77
Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant
of Arrest against Omar Hassan Ahmad Al Bashir" (http://www.icc-cpi.int/iccdocs/doc/doc817795.pdf, last visited,
10.10.2012)
78
The Judgment of the Pre-Trial Chamber I on the Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir
(http://www.icc-cpi.int/iccdocs/doc/doc907140.pdf, last visited, 10.10.2012)
76
25
specific intent (dolus specialis) of destroying the group in whole or in part as such. The Court
considered those systematically directed atrocities against the protected groups as
circumstances and evidence of genocidal intent.
Crime of genocide can only be proved whether or not the material element of the
crime and the acts enumerated in the Convention has been committed. Other acts of the
perpetrator to commit the acts enumerated in the Convention are also important for the
determination of the perpetrator’s intent. For example, if a genocide plan has been prepared
and that there is an organization for this task demonstrates the perpetrator’s preparations to
commit genocidal acts.79
9. Concluding Remarks
Genocidal acts experienced before the 1948 Genocide Convention was referred to
with political-social evaluations such as massacre, brutality, barbarity. The term “genocide”
was coined by Lemkin in 1944 and its legal definition has been made with the 1948
Convention on Genocide. Atrocities which are elements of genocide did not exist or defined
as genocide in any criminal code of any country until the Genocide Convention. However, the
crime of genocide has also been criminalized in many domestic criminal law systems
following the preparation of the Genocide Convention.
Today the crime of genocide which constitutes one of the jus cogens rules of
international law is under the analysis field of international law on one hand and the criminal
law on the other hand. 1948 Convention on Genocide is the fundamental legal document for
the determination and definition of the crime of genocide regarding international criminal law.
The statutes of the ICTY and the ICTR mirrored the definition of genocide contained in the
79
See, Schabas, supra note, 1, at 210 et seq.
26
Genocide Convention. Also the definition of the crime of genocide in Article 6 of the ICC
Statute is identical to the definition of genocide set out in the 1948 Convention. These
tribunals have applied customary and human rights laws in interpreting the crime of genocide
during the trials. Although a large number of national criminal codes have codified the crime
of genocide, the existence of genocide should be determined through an evaluation of the
Convention and the decisions of the ad hoc courts together.
In terms of substantive criminal law, for the existence of the crime, the material and
mental element of the crime determined in the definition of the crime should have been
realized. While the actus reus (material element) of the crime is the act, the mens rea
(mental element) of the crime is culpability. The elements of the crime of genocide are
derived from the definition of Article 2 of the Genocide Convention and also article 6 of the
ICC Statute. According to this article, the crime of genocide is committing any of the acts
enumerated in the Convention with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group. The circumstance elements or material element (actus reus) of the
crime of genocide is “committing any of the acts enumerated in the Article 2 of the
Convention against a national, ethnical, racial or religious group as such.”
The mental element of genocide is intention. Genocide can be committed only
intentionally. Because the enumerated acts in Article 2 of the Genocide Convention and also
Article 6 of the ICC Statute can be committed intentionally. Intention means that the
perpetrator committed the crime with knowledge and willing. The purpose of the perpetrator
is “intent to destroy in whole or in part a national, ethnical, racial or religious group as such”.
So the perpetrator should also commit the crime with a special purpose that is the intent to
destroy the targeted group. This special purpose of the perpetrator in crime of genocide is
called “genocidal intent” which is called “special intent” (dolus specialis) in general theory of
substantive criminal law.
27
The crime of genocide can only be committed intentionally and through one of the
acts enumerated in the 1948 Convention and ICC Statute. The basic characteristic of the
crime is the purpose of the perpetrator committing the crime and this is the intention of
destroying a group in whole or in part. Since the purpose of the perpetrator for the crime of
genocide is the reason of which the act has been forbidden, the point in question is “special
intent” or “genocidal intent”. In the event that the perpetrator has no genocidal intent;
massacre, murder, ethnic cleansing, and even crimes against humanity would come up; but
not genocide.
28